Municipal Board of Ferozabad Vs. Bhola Nath and anr. - Court Judgment

LegalCrystal Citation

legalcrystal.com/453872

Subject

Civil

Court

Allahabad

Decided On

Jan-31-1927

Reported in

AIR1927All432; 101Ind.Cas.446

Appellant

Municipal Board of Ferozabad

Respondent

Bhola Nath and anr.

Excerpt: - - 1. the suit, giving rise to the present appeal, was brought by the plaintiffs-respondents, for a perpetual injunction restraining the defendant-appellant (the municipal board of ferozar bad ) from demolishing a latrine in the plaintiffs' house. the latrine in question is not new, that it is not insanitary and that the defendant board bad absolutely no right to get it demolished. such cases are those in which the orders passed by the municipal board, the legality of which is questioned in the civil court are orders passed by the board in exercise of the powers vested in the board by statutory enactments like the municipalities act. it aims at the greatest good of the greatest number......an authority which the law does not give them no doubt their action can be challenged by a suit in civil courts. but if they confine themselves within the exercise of powers which the legislature has seen fit to confer upon them the statutory powers are a sufficient answer to any suit that may be brought.7. it is to be noted that the powers conferred on a municipal board by section 267(1)(a) of the municipalities act ( local act 2 of 1916 ) are very wide. the legislature, in its discretion, has vested the board with absolute power to direct the closing or the removal of any latrine, etc., without assigning any reason for such direction. cases are conservable in which a board may be actuated by malice in passing an order under sub-c1. (a) of section 267(1) of the municipalities.....

Judgment:

Iqbal Ahmad, J.

1. The suit, giving rise to the present appeal, was brought by the plaintiffs-respondents, for a perpetual injunction restraining the defendant-appellant (the Municipal Board of Ferozar bad ) from demolishing a latrine in the plaintiffs' house. The plaintiffs' latrine is of the kind known as sandas. The Municipal Board in exercise of the powers vested in it by Section 267(1)(a) of the Municipalities Act ( Local Act 2 of 1916 ) issued a notice on the 20th of June 1923 directing the plaintiffs to close the latrine. It was stated in the notice that the latrine had been newly constructed and its continuance was calculated to be injurious to public health.

2. The plaintiffs' case was that the latrine in question was old and was kept clean, and did not cause any inconvenience to the members of the public, and that the notice was issued at the instigation of the mohalla people and of some of the officials of the Municipal Board, who were inimically disposed, towards the plaintiffs, and that the notice was invalid and the Municipal Board had no right to get the plaintiffs' latrine demolished.

3. The suit was resisted on various grounds by the Municipal Board, but the only ground raised in defence, with which I am concerned in the present appeal, was that the civil Court had no jurisdiction to entertain the suit, and that the suit was not maintainable.

4. The trial Court held that:

The latrine in question is not new, that it is not insanitary and that the defendant Board bad absolutely no right to get it demolished.

and decreed, the plaintiffs' suit. The lower appellate Court has affirmed the findings and the decree of the trial Court.

5. In appeal before me it is argued, on behalf of the Municipal Board, that the civil Court had no jurisdiction to entertain the suit and that the suit ought to have been dismissed on that ground. I am unable to agree with this contention. The object of the suit was to prevent an infringement of the plaintiffs' proprietary rights by the Municipal Board. The suit was, undoubtedly, a suit of a civil nature. The civil Court had, therefore, in view of the provisions of Section 9 of the Civil P.C. jurisdiction to try the suit, unless its cognizance was expressly or impliedly barred. There are certain orders passed by the Municipal Board which cannot, in view of the provisions of Sections 318 and 321 of the Municipalities Act. be questioned in the civil Court. But there is no provision in that Act expressly barring the jurisdiction of the civil Court to entertain suits of the description filed by the plaintiff. If it was the intention of the legislature that the legality of all orders passed by Municipal Boards cannot be questioned in a civil Court one would have expected a provision to that effect in the Municipalities Act. But there is no such provision in that Act. Section 233 of the Land Revenue Act (Local Act 3 of 1901), Section 167 of the Agra Tenancy Act (Local Act 2 of 1901 ) and Section 230 of the Agra Tenancy Act (Local Act 3 of 1926) furnish instances of statutory provisions barring the jurisdiction of the civil Courts from taking cognizance of particular class of suits. Similar provisions are to be found in the Income. Tax Act and in the Pensions Act. The absence of any such provision, with respect to most of the orders that a Municipal Board is authorised to pass in accordance with the provisions of the Municipalities Act. leads one to the conclusion that the jurisdiction of the civil Courts to consider the legality of such orders was not intended to be barred. The case of Mahimaranjan Roy v. Municipal Board of Benares [1904] 1 A.L.J. 377. and Alopi Din v. Municipal Board of Allahabad [1907] 4 A.L.J. 8 furnish instances of cases in which suits questioning the legality of the orders of Municipal Boards have been entertained by the civil Courts.

6. But it is to be noted that, though a civil Court may have jurisdiction to take cognizance of a particular suit, it does not necessarily follow from that fact, that valid defences may not be open to the defendant to that suit. Much of the apparent conflict in the cases noticed in the judgments of the Courts below will disappear, if the question of jurisdiction of the civil Court is not confused with the question whether or not a valid defence is available to the defendant in the suit. In both the cases noted above this Court held that the notice issued by the Board was not a valid notice, inasmuch as the alleged encroachments were not on any street and as such, the Board was not authorised by Section 88 of the Municipalities Act ( Local Act 1 of 1900) to require by notice the owner to remove that projection. In short, in those cases it was held that the civil Court had jurisdiction to try suits questioning the legality of the orders passed by the Municipal Board and those suits were decreed, because it was found that the orders passed by the Board, and challenged in those cases were orders not within the powers conferred upon the Board by the Municipalities Act. In other words those cases were cases which were within the jurisdiction of the civil Court and in which there were no valid defences available to the Municipal Board. The other class of cases are those which are within the jurisdiction of the civil Courts but in which valid defences are available to the Municipal Board. Such cases are those in which the orders passed by the Municipal Board, the legality of which is questioned in the civil Court are orders passed by the Board in exercise of the powers vested in the Board by statutory enactments like the Municipalities Act. The cases of Abdul Aziz v. Chairman of the Board of Pilibhit [1905] 2 A.L.J. 222 and Chauli v. Municipal Board of Muzaffarnagur [1915] 12 A.L.J. 1102 are illustrations of this class of cases. It was pointed out in the case of Abdul Aziz v. Chairman of the Board of Pilibhit [1905] 2 A.L.J. 222 that, if a Board goes beyond the powers conferred on it by the Municipalities Act,

or if the Board are assuming to themselves an authority which the law does not give them no doubt their action can be challenged by a suit in civil Courts. But if they confine themselves within the exercise of powers which the legislature has seen fit to confer upon them the statutory powers are a sufficient answer to any suit that may be brought.

7. It is to be noted that the powers conferred on a Municipal Board by Section 267(1)(a) of the Municipalities Act ( Local Act 2 of 1916 ) are very wide. The Legislature, in its discretion, has vested the Board with absolute power to direct the closing or the removal of any latrine, etc., without assigning any reason for such direction. Cases are conservable in which a Board may be actuated by malice in passing an order under sub-C1. (a) of Section 267(1) of the Municipalities Act, but even in such cases the civil Court is powerless to grant any (relief to the person aggrieved by that order, as the Municipal Board is authorised by the Legislature to pass such orders without assigning any reason therefor. The fact that in particular instances there may be real hardship to a private individual cannot warrant the disregard of the powers vested in the Board by a legislative enactment. The law does not care for the convenience or inconvenience of particular individuals. It aims at the greatest good of the greatest number. As was observed by Daniels, J., in the case of Babu Lal v. Municipal Board, Farrukhabad [1915] 12 A.L.J. 1102 that,

as regards the second plea, there is no doubt that great hardship might be caused if the Municipal Board abused its powers under the Act. This must necessarily be the case whenever a public body is entrusted with wide powers.

8. The sole Judge of the question whether on sanitary grounds it is advisable to direct the closing of a latrine, etc., is the Municipal Board, and no Court can call into question the propriety of an order passed by the Board under that section.

9. For the reasons that I have given above, I hold that the civil Court had jurisdiction to try the suit giving rise to the present appeal, but the notice issued and the order passed by the Municipal Board were within the powers conferred upon it by Section 267(1)(a) of the Municipalities Act and that the suit of the plaintiffs ought to have been dismissed on that ground.

10. The result is that I allow the appeal, set aside the decrees of the Courts below and dismiss the plaintiffs' suit with costs in all Courts.